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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
XXXXXX X. XXXXXXXXXX
&
XXXXXXX'X FLEET SERVICE CO., INC.
Agreement (this "Agreement") dated as of this 1st day of March, 1996 is entered
into by and between XXXXXXX'X FLEET SERVICE CO., INC. (the "Company") and
XXXXXX X. XXXXXXXXXX ("Xx. Xxxxxxxxxx"). The parties entered into an
employment agreement dated as of August 1, 1994, but now wish to amend that
agreement in its entirety. Accordingly the parties agree as follows:
1. THE TERM: Commencement Date: March 1, 1996
Expiration Date: February 28, 2001 unless sooner
terminated as provided below.
2. RESPONSIBILITIES
AND SALARY: During the Term, Xx. Xxxxxxxxxx shall be elected a
Vice President of the Company and shall devote his
best efforts on a full time basis to carrying out the
responsibilities assigned to him.
Commencing as of January 1, 1996 and continuing during
the Term, the Company shall pay to Xx. Xxxxxxxxxx a
base salary of not less than seventy-two thousand five
hundred forty dollars ($72,540) per year.
From and after March 1, 1997 for the balance of the
Term, Xx. Xxxxxxxxxx'x salary shall be subject to an
annual review on March 1 of each fiscal year for merit
or other increases in the sole discretion of the Board
of Directors of the Company.
3. BENEFITS: Xx. Xxxxxxxxxx shall be entitled to the same benefits
as are made available to the Company's other senior
executives and on the same terms and conditions as
such executives.
In lieu of the Company providing to Xx. Xxxxxxxxxx for
his exclusive use a vehicle leased by the Company, Xx.
Xxxxxxxxxx has elected to purchase such a vehicle
himself. Accordingly, the Company shall pay to Xx.
Xxxxxxxxxx one hundred fifty dollars ($150) per week
to cover all the costs associated with such vehicle
including, but not limited to gas, maintenance,
repairs and collision, fire, theft and liability
insurance. All of the benefits in this Paragraph 3
are hereinafter referred to as the "Benefits."
4. INCENTIVE BONUS: Xx. Xxxxxxxxxx shall be paid the annual incentive
bonus that is described in Exhibit A hereto (the
"Incentive Bonus").
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5. BUSINESS
EXPENSES: Xx. Xxxxxxxxxx shall be reimbursed in accordance with
Company policy from time to time in effect for all
reasonable business expenses incurred by him in the
performance of his duties, including travel from his
residence to the Company's various facilities other
than its headquarters facility.
6. ONE-TIME PAYMENT
& PROMISSORY NOTE: Upon the execution of this Agreement by Mr,
Xxxxxxxxxx, and in consideration thereof, the
Company's parent, Oakhurst Company, Inc., shall pay
to Xx. Xxxxxxxxxx the sum of fifty-four thousand two
hundred seventy-five dollars ($54,275) and shall
deliver to Xx. Xxxxxxxxxx the executed original of
the form of promissory note attached hereto as
Exhibit B.
7. INDEMNIFICATION: Xx. Xxxxxxxxxx shall be indemnified by the Company
with respect to claims made against him as an officer
and/or employee of the Company and as a director,
officer and/or employee of any affiliate of the
Company to the fullest extent permitted by the
Company's charter, by-laws and the laws of the State
of New York.
8. TERMINATION BY
THE COMPANY: Xx. Xxxxxxxxxx'x employment may be terminated by the
Company only pursuant to the following provisions:
(a) FOR CAUSE For Cause, by written notice to Xx. Xxxxxxxxxx, in
which event the Company shall pay him his salary
through the date of termination to the extent not
theretofore paid, provided that --
(1) if the nature of such Cause involves
dishonesty, fraud or serious moral
turpitude, such termination shall be
effective upon the giving of such notice,
but
(2) if the nature of such Cause does not involve
dishonesty, fraud or serious moral
turpitude, such termination shall be
effective upon the expiration of thirty (30)
days after the giving of such notice unless
within such thirty-day period, Xx.
Xxxxxxxxxx has cured the basis of such
Cause, or if a cure is not possible within a
thirty-day period, if he has diligently and
in good faith commenced and thereafter
diligently pursues a cure.
(b) WITHOUT
CAUSE Without Cause, by written notice to Xx. Xxxxxxxxxx,
in which event the Company shall pay him his salary
(in a lump sum) for the balance of the term of this
Agreement (to the extent not theretofore paid to
him), but in any event not less than six (6) months'
salary, and shall pay him the Incentive Bonus as and
to the extent provided for in Exhibit A.
(c) DEFINITION OF
"CAUSE" "Cause" for purposes of termination by the Company
shall be defined as
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any act or acts by Xx. Xxxxxxxxxx of dishonesty or
fraud or that constitute serious moral turpitude; or
misconduct of a material nature or a material breach
in connection with the performance by him of his
responsibilities hereunder.
(d) DEATH OR
PERMANENT
DISABILITY Upon the death or permanent disability of Xx.
Xxxxxxxxxx, in which event the Company shall continue
to pay him his salary for a period of six (6) months
after his death or permanent disability, and shall
pay him the Incentive Bonus as and to the extent
provided for in Exhibit A.
9. TERMINATION BY
XX. XXXXXXXXXX: Xx. Xxxxxxxxxx may terminate his employment under
this Agreement only pursuant to the following
provisions:
(a) FOR CAUSE For Cause, upon the expiration of thirty (30) days
after giving the Company notice of a breach by it of
this Agreement unless within such thirty-day period,
the Company has cured the basis of such Cause, or if
a cure is not possible within a thirty-day period, if
it has diligently and in good faith commenced and
thereafter diligently pursues a cure. In the event
of a termination by Xx. Xxxxxxxxxx for Cause, he may
pursue any and all remedies against the Company
available to him under applicable law.
(b) WITHOUT
CAUSE Without Cause, one hundred eighty (180) days after
giving written notice of his resignation to the
Company, in which event the Company may deem such
notice as a resignation by him, effective upon the
giving of such notice, of all of the directorships
and offices then held by him in the Company and its
affiliates, but the Company shall nevertheless
continue to pay to him his salary during such one-
hundred-eighty-day period.
(c) DEFINITION OF
"CAUSE" "Cause" for purposes of termination by Xx. Xxxxxxxxxx
shall consist of any material breach by the Company
in the performance of any of its obligations set
forth in this Agreement or a material breach of any
statutory obligation to Xx. Xxxxxxxxxx.
10. NOTICES: Notices that are required or permitted hereunder
shall be given by hand delivery, by delivery to a
courier service providing next-business-day delivery
and proof of delivery or, in the case of the Company,
by facsimile transmission, as follows:
If to the Company: c/o Oakhurst Capital, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
Attention: Chief Executive
Officer
Facsimile No.: (000) 000-0000
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With a copy to: Xxxxx X. Xxxxxx, General
Counsel
00 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
If to Xx. Xxxxxxxxxx at: Xxxxxx X. Xxxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxx Xxxxxxxx, XX 00000
or, to such other address of a party as to which that
party shall notify the other parties in the manner
provided herein.
11. PRORATION: To the extent that proration is not otherwise
provided for in this Agreement, all amounts payable
to Xx. Xxxxxxxxxx under this Agreement shall be
deemed earned on a daily basis and shall be pro rated
based on a 365-day year.
12. ENTIRE
AGREEMENT ETC.: This Agreement together with Exhibit A and Exhibit B
contains the entire understanding of the parties;
shall not be amended except by written agreement of
the parties signed by each of them; shall be binding
upon and inure to the benefit of the parties and
their successors, personal representatives and
assigns; and, as noted above, supersedes and replaces
in its entirety the employment agreement between the
Company and Xx. Xxxxxxxxxx dated August 1, 1994.
No representation, affirmation of fact, course of
prior dealings, promise or condition in connection
herewith or usage of the trade not incorporated
herein shall be binding on the parties.
No waiver of any term or condition contained herein
shall be binding upon the parties unless made in
writing and signed by the party to be bound thereby.
The words "herein", "hereof", "hereunder", "hereby",
"herewith" and words of similar import when used in
this Agreement shall be construed to refer to this
Agreement as a whole. The word "including" shall
mean including, but not limited to any enumerated
items.
The failure to insist upon strict compliance with any
term, covenant or condition contained herein shall
not be deemed a waiver of such term, nor shall any
waiver or relinquishment of any right at any one or
more times be deemed a waiver or relinquishment of
such right at any other time or times.
The captions of the paragraphs herein are for
convenience only and shall not be used to construe or
interpret this Agreement.
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In Witness Whereof, the parties have executed and delivered this Agreement as
of the date first set forth above.
XXXXXXX'X FLEET SERVICE CO., INC.
By: /s/ Maarten X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------ ------------------------------------
Maarten X. Xxxxxxx XXXXXX X. XXXXXXXXXX
Chairman of the Board of Directors
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EXHIBIT A
EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXXXXXX
THE INCENTIVE BONUS
1. INCENTIVE BONUS: For each fiscal year during the Term commencing with the
fiscal year ending February 28, 1997, the Company shall pay to Xx.
Xxxxxxxxxx the Incentive Bonus, consisting of two portions, as follows:
Twenty thousand dollars ($20,000) (the "Fixed Portion") plus two percent
(2%) of the Operating Profits of the Company (as hereinafter defined) that
exceed the budgeted Operating Profits of the Company for a given fiscal
year (the "Variable Portion").
2. INCENTIVE BONUS PRORATION:
(a) In the event that this Agreement expires, or Xx. Xxxxxxxxxx'x
employment is terminated by the Company for other than Cause prior
to the end of a fiscal year, the Company shall pay to him the Fixed
Portion pro rated for the number of days in the fiscal year then
elapsed and shall pay him any Variable Portion earned for the
period from the beginning of the fiscal year in which such
expiration or termination occurred through the last day of the
fiscal month in which such expiration or termination becomes
effective (the "Short Fiscal Year"), based on the Operating Profits
through such fiscal month end and the budgeted Operating Profits
for such period.
(b) If Xx. Xxxxxxxxxx shall resign from the Company's employ, no bonus
of any kind shall be payable to him with respect to the fiscal year
in which he gave or was obliged to give his notice of termination
as provided herein, or for any subsequent fiscal year.
3. PAYMENT OF THE INCENTIVE BONUS. The Company shall pay the Incentive Bonus
to Xx. Xxxxxxxxxx within ninety (90) days after the end of each fiscal
year, except that the Incentive Bonus computed according to Paragraph
2.(a), above, shall be paid within sixty (60) days of the end of the Short
Fiscal Year.
4. DEFINITIONS.
(a) For purposes of this Agreement, "fiscal year" and "fiscal month"
shall refer to the fiscal year and month of the Company being used
on the date hereof. In the event that the fiscal year or month of
the Company is changed for any reason, an equitable adjustment
shall be made so that no portion of the Incentive Bonus that would
otherwise have been payable hereunder shall by reason of such
change become not payable.
(b) For purposes of this Agreement, "Operating Profits" shall be
defined as the net income of the Company for a given period
determined in accordance with generally accepted accounting
principles, consistently applied, before payment or provision for
federal or state income or franchise taxes, and excluding (a) any
amortization of goodwill or other intangibles; (b) any interest
charges related to the purchase of the Company's stock by Oakhurst
Company, Inc.; and (c) charges or allocations by the Company's
parent or an affiliated company except to the extent that such
charges are for items of expense that, had they not been paid by
the Company's parent or a related entity, would have been paid by
the Company (e.g. insurance
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premiums and interest on working capital borrowings). For purposes
of the foregoing, inventory shall be valued on a FIFO basis.
END OF EXHIBIT A
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EXHIBIT B
EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXXXXXX
FORM OF OAKHURST PROMISSORY NOTE
$220,000 MARCH 1, 1996
FOR VALUE RECEIVED Oakhurst Company, Inc. ("Oakhurst") agrees to pay to Xxxxxx
X. Xxxxxxxxxx or order, (the "Holder") the principal sum of Two Hundred Twenty
Thousand Dollars ($220,000) in twenty (20) quarterly installments of eleven
thousand dollars ($11,000) each on or before the first business day of June,
September, December and March in each year commencing June 1, 1996.
INTEREST. Oakhurst shall pay interest from the date hereof quarterly in
arrears on the unpaid principal balance of this Note from time to time
outstanding at an annual rate of six percent (6%), not compounded.
DEFAULT INTEREST. Any payment of principal or interest not made when due
shall, if not paid before the expiration of any cure periods therefor, bear
interest at the annual interest rate then in effect plus two percentage points.
VOLUNTARY PRE-PAYMENTS. This Note may be prepaid in whole or in part at any
time or from time to time without penalty or premium provided that all
prepayments shall be applied first to any accrued interest and then to any
outstanding principal balance hereof.
MANDATORY PREPAYMENT. All of the outstanding balance of this Note shall become
due and payable in full on the date that Oakhurst sells either (i)
substantially all of the business or assets of, or (ii) more than fifty
percent (50%) of the voting stock of Xxxxxxx'x Fleet Service Co., Inc. to
anyone other than an affiliate of Oakhurst.
DEFAULT. At the option of the Holder, this Note shall become immediately due
and payable in full without notice or demand upon the occurrence of any one or
more of the following events:
(a) The failure to make any payment of any principal or interest due
hereunder within ten (10) business days after notice of such
failure has been given to Oakhurst; or
(b) The admission by Oakhurst of its inability to pay its debts as they
become due; the insolvency or the appointment of a receiver with
respect to Oakhurst or its property; any assignment of the property
of Oakhurst for the benefit of creditors; or the commencement of
any proceedings under any bankruptcy or insolvency laws by or
against Oakhurst unless such proceeding is dismissed within ninety
(90) days of the filing thereof.
WAIVER OF PRESENTMENT ETC. Oakhurst hereby waives presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance, default (except as otherwise expressly provided
herein), or enforcement of this Note. Oakhurst agrees that any delay or
omission on the part of the Holder in exercising any right hereunder shall not
operate as a
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waiver of such right, or of any other right hereunder; and a waiver of any
right on one occasion shall not be construed as a bar or a waiver of any such
right on any future occasion.
NOTICES. All notices required or permitted hereunder shall be in writing and
shall be deemed given by a party either (a) when hand delivered to a party; or
(b) when deposited with a delivery service with instructions to provide
next-business-day delivery and proof of delivery, if to Oakhurst at its
corporate offices and if to the Holder at 00 Xxxxxxxx Xxxxx, Xxx Xxxxxxxx, XX
00000 or to such other address of Oakhurst or the Holder as to which it or he
shall notify the other.
OAKHURST COMPANY, INC.
By: /s/ Xxxx Xxxxxxxx Attest: /s/ Xxxxx X. Xxxxxx
-------------------------------- --------------------------------
Xxxx Xxxxxxxx Xxxxx X. Xxxxxx
Chairman & Chief Executive Officer Secretary
END OF EXHIBIT B
